Jury Nullification: "I Don?t Care What the Judge Said!?

[d_goddard]

This was posted over on the FTL BBS and I thought it was awesome, useful info.
Hence, re-posting here.

http://www.theconservativevoice.com/article/24518.html

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by Joel Turtel
?I Don?t Care What the Judge Said!?
April 22, 2007 02:00 PM EST

?Look, Mr. Straun, John, can I call you John? We?ve been at this for 25 days. We?re all sick of this. We all want to go home. You?re the only one left. You?re the one keeping us here. I got things to do at home. I got to go to work and make a living. All of us do. The judge is mad as hell at us. You?re going to hang this jury. You?re going to make this three-month trial into a farce and waste of time. You have no right to vote acquittal. You heard the judge?s instructions. The jury is not allowed to judge the law, only the facts.?

?The fact are clear as day, aren?t they?? Dillard ranted. ?You even admitted that to us. The guy was found with marijuana in his car. That?s against the law. And the guy admitted the marijuana was his. What more do you need?? said Raymond Dillard, the jury foreman. Raymond Dillard was tall, beefy, in his 30?s, and he was getting mad, so mad he wanted to beat John Straun?s head in.

Straun was a small, slim man in his 30?s, with a straight back, dark brown hair, large, steady eyes, and a firm mouth. He seemed not to care at all about all the trouble he was causing. And he seemed to be fearless.

John Straun said, ?I don?t care what the judge said. I happen to know for a fact that a jury has the right to judge the law. Jury nullification has a long history in this country. A jury has the right to judge the law, not just the facts.?

Raymond Dillard and a few other jurors sneered. Dillard said, ?Oh, are you a lawyer, Mr. Straun? You think you know more than the judge? What history are you talking about??

John Straun said calmly, ?No, I?m not a lawyer. I?m an engineer. But in this particular case, I do know more than the judge. When I found out I was going to be on this jury, I did a little research about the history of juries, just for the hell of it. Most people don?t know this, but jury nullification has been upheld as a sacred legal principal in English common law for 1000 years. Alfred the Great, a great English king a thousand years ago, hung several of his own judges because they removed jurors who refused to convict and replaced these courageous jurors with other jurors they could intimidate into convicting the defendant on trial.?

?Jury nullification also goes back to the very beginning of our country, as one of the crucial rights our Founding Fathers wanted to protect. Our Founding Fathers wanted juries to be the final bulwark against tyrannical government laws. That?s why they emphasized the right to a jury trial in three of the first ten amendments to the Constitution. John Adams, second President of the United States, Thomas Jefferson, third President and author of the Declaration of Independence, John Jay, First Chief Justice of the U.S. Supreme Court, and Alexander Hamilton, First Secretary of the Treasury all flatly stated that juries have the right and duty to judge not only the facts in a case, but also the law, according to their conscience.?

?Not only that, more recent court decisions have reaffirmed this right. In 1969, in ?US. vs. Moylan,? the Fourth Circuit Court of Appeals upheld the right of juries to judge the law in a case. In 1972, the Washington, D.C. Court of Appeals upheld the same principal.?

Raymond Dillard said, ?Yeah, if that?s the case, how come the judge didn?t tell us this??

?That?s because of the despicable Supreme Court decision in ?Sparf and Hansen vs. The United States in 1895.? John Straun said. ?That decision said juries have the right to judge the law, but that a judge doesn?t have to inform juries of this right. Cute, huh? And guess what happened after this decision? Judges stopped telling juries about their rights.?

?The judge knows about jury nullification. All judges do. But they hate letting juries decide the law. They hate juries taking power away from them. That?s why judges never mention a jury?s right to judge the law, and most judges squash defense attorneys from saying anything about it in court. Remember when Jimmy Saunders? defense lawyer started talking about it? The judge threatened him with contempt if he didn?t shut up about jury nullification.?

?And since you asked me,? Straun continued, ?I?ll tell you a little more about jury nullification. Did you ever hear of the Fugitive Slave Act? Did you ever hear of Prohibition? Do you know why those despicable laws were repealed? Because juries were so outraged over those laws that they consistently refused to convict people who violated them. They refused to convict because they knew that these laws were unjust and tyrannical, that Congress had no right making these laws in the first place. So, because juries wouldn?t convict, the government couldn?t make these laws stick. They tried for many years, but finally gave up.?

?What do you think this mad War on Drugs is that we?ve been fighting the last sixty years? It?s the same as Prohibition in the 20?s. It?s the same principle. A tyrannical government is telling people that they can?t take drugs, just like in the 20?s they said people couldn?t drink liquor. What?s the difference? A tyrannical law is telling people what they can or can?t put in their own bodies. Who owns our bodies, us or the self-righteous politicians? Does the government own your body, Mr. Dillard? Do you smoke, Mr. Dillard? Do you drink beer??

Dillard nodded his head, ?Yeah, I do.?

?Well, how would you like it if they passed laws telling you that can?t smoke or drink a beer anymore. Would you like that, Mr. Dillard??

Dillard looked at John Straun, thought about the question, then admitted, ?No, I wouldn?t, Straun.?

John Straun turned to the others around the table. ?You, Jack, you said you?re sixty-five years old. You like to play golf, right? What if they passed a law saying anyone over sixty-five can?t play golf because the exercise might give him a heart attack? You, Frank, you said you eat hamburgers at McDougals all the time. What if they passed a law saying fatty hamburgers give people heart attacks, so we?re closing down all the McDougal restaurants in the country, and they make eating a hamburger a criminal offence? You, Mrs. Pelchat, I see you like to smoke. Everyone knows that smoking can give you lung cancer. How would you like it if they passed a law banning all cigarettes? What if they could crash in the door of your house without a warrant to search for cigarettes in your house, like the SWAT teams do now, looking for drugs? Mrs. Pelchat, how would you like to be on trial like Jimmy Saunders because they found a pack of cigarettes you hid under your mattress??

?Do you all see what I mean? If they can make it a crime for Jimmy Saunders to smoke marijuana, why can?t they make golf, hamburgers, and cigarettes a crime? If you think they wouldn?t try, think again. They had Prohibition in the 20?s for almost ten years, till they finally gave up. The only reason they haven?t banned cigarettes is because there are thirty million cigarette smokers in this country who would scream bloody murder. They get away with making marijuana and other drugs illegal only because drug-users are a small minority in this country. Drug users don?t have any political clout.?

Raymond Dillard sat down in his chair. The others started talking among themselves. John Straun started seeing heads nodding in agreement, thinking about what he had said.

?OK, Straun,? Dillard said. ?Maybe you?re right. Maybe Jimmy Saunders shouldn?t go to jail for smoking marijuana. Hell, probably most of us tried the stuff when we were young. Clinton said he smoked marijuana in college. Bush said he tried drugs in college. Probably half of Congress and their kids took drugs one time or another. O.K. we agree with you. But what about the judge. He said we can?t judge the law.?

John Straun stood up. He was not a tall man, but he stood very straight, and he looked very sure of himself. He looked from one to another of them.

He said, ?If you agree with me, then I ask you all to vote for acquittal. You are not only defending Jimmy Saunders? liberty, but your own. You are fighting a tyrannical law that is enforced by a judge who wants the power to control you. I told you that many juries like us in the past have disregarded the judge?s instructions. They stood up for liberty against a tyrannical law. Are you Americans here? What do you va!ue more, your liberty, your pride as free men, or the instructions of a judge who doesn?t want you to judge the law precisely because he knows you?ll find the law unjust? Will you stand with those juries who defended our liberty in the past, or will you give in to this judge??

?Here?s another thing to think about,? John Straun said with passion. ?What if it was your sister or brother on trial here? Do you know that if we say Saunders is guilty, the judge has to send him to prison for twenty years? I understand this is Saunders third possession charge. You know the ?three strikes and you?re out? rule, don?t you? The politicians passed a law that if a guy gets convicted three times on possession, the judge now has no leeway in sentencing. He has to give the poor guy twenty years in prison. What if it were your sister or brother on trial? Should they go to jail for smoking marijuana, for doing something that should not be a crime in the first place? Do we want to send Jimmy Saunders to prison for twenty years because he smoked a joint, hurting no one? Can you have that on your conscience??

?Do you know that there are almost a million guys like Jimmy Saunders in federal prisons right now, as we speak, for this same so-called ?crime? of smoking marijuana or taking other drugs? These men were sent to prison for mere possession. They harmed no one but themselves when they took drugs. How can you have a crime without a victim? When does this horror stop? It has got to stop. I?m asking you all now to stop it right here, at least for Jimmy Saunders. The only thing that can stop tyrannical laws and politicians is you and me, juries like us. If we do nothing, we?re lost, the country is lost.?

?I?m asking you all to bring in a not-guilty verdict, because the drug laws are unjust and a moral obscenity. I?m asking you all be the kind of Americans our Founding Fathers would have been proud of, these same men who fought for your liberty. That?s what I?m asking of all of you.?

John Straun sat down and looked quietly at Dillard and all the others around the table. They looked back at him, and it seemed that their backs began to straighten up, and they no longer complained about going home. They were quiet. Then they talked passionately amongst each other.

Fifteen minutes later, they walked into the courtroom and sat down in the jury box. When the judge asked Raymond Dillard what the verdict was, he was stunned when Dillard, standing tall, looking straight at the judge, said ?Not guilty.? Over the angry rantings of the red-faced judge, all in the jury box looked calmly at John Straun, and felt proud to be an American.

[Dreepa]

 

[SpeedPhreak]

good read

[Raineyrocks]

 

[KBCraig]

It's a good read. The only jury I've ever been allowed on was a civil trial, so I didn't have the chance to nullify. Mary has a jury notice for next week... maybe she'll get her chance.

One quibble: "Do you know that there are almost a million guys like Jimmy Saunders in federal prisons right now, as we speak, for this same so-called 'crime' of smoking marijuana or taking other drugs? These men were sent to prison for mere possession. They harmed no one but themselves when they took drugs."

The federal prison system oversees about 185,000 inmates. That's at least 184,900 more than would be authorized by the Constitution, but it's nowhere near a million cases, "mere possession" or otherwise.

Perhaps he just meant "in prisons", instead of "in federal prisons". Since there are about 2.2 million behind bars, a million is plausible.

And I must say, one is too many.

[SpeedPhreak]

lets not forget about the millions of other non criminals on probation or parole too.

or the other non criminals in jail, probation, parole whose lifes are ultimatley ruined do to background checks & other atrocities. - prostitution, age of consent, driving w/out a license, fighting between 2 willing participants, etc, etc, etc.

[LiveFree]

Awesome read, thanks for posting.  I think this could be made into a short film along the lines of "Twelve Angry Men" to really drive the point home...

[Rodinia]

I had jury duty a couple years ago in Strafford county.  One case I sat on was judged by Peter Fauver. He informed the jury on jury nullification and explained it throughly.

[KBCraig]

"Twelve Angry Men"

Or something like that...

[dalebert]

One quibble: "Do you know that there are almost a million guys like Jimmy Saunders in federal prisons right now, as we speak, for this same so-called 'crime' of smoking marijuana or taking other drugs? These men were sent to prison for mere possession. They harmed no one but themselves when they took drugs."

The federal prison system oversees about 185,000 inmates. That's at least 184,900 more than would be authorized by the Constitution, but it's nowhere near a million cases, "mere possession" or otherwise.

Good point. I was wondering if people in the know could confirm or deny the many claims made in the story. It's a great story and if the points in it are true, it could be a great tool for promoting liberty. I just want to be confident that they're true first.

[KBCraig]

http://www.upi.com/NewsTrack/Quirks/2002/11/04/assignment_america_keep_juries_dumb/3940/

Assignment America: Keep juries dumb
Published: Nov. 4, 2002 at 1:27 PM

By JOHN BLOOM
UPI Reporter at Large
NEW YORK, Nov. 4 (UPI) -- In America we like our juries dumb and predictable. God forbid they should know anything about the case they're judging, much less the law they're judging it by. We need to protect them from all sorts of things that could infect their brains with information.

If we didn't do that, it would be like trusting 12 guys off the street to dispense justice. What a quaint idea. And, obviously, a dangerous one.

The idea of a jury is at least 3,000 years old -- the Greeks thought 12 was the perfect number of panelists -- but our version of it is much younger. We're coming up on the 800th anniversary of the year when King John was told, essentially, stop forcing your laws down our throats or we're going to burn down your castle.

Voila! The modern jury system was born. The king could decree all the laws he wanted to decree, but from then on it would be 12 guys from the neighborhood who decided whether they would actually be used against anybody.

King John didn't go quietly, of course -- he hated the Magna Carta and tried to throw jurors in prison when they failed to convict -- so it shouldn't be that surprising that eight centuries later our own black-robed jurists continue to fear juries and try to manipulate and rein them in whenever possible. They would be much more comfortable with juries in the French, Russian or Islamic sense -- panels of professional judges -- but unfortunately they've got this pesky "peers" concept to deal with.

The main way they neutralize the enemy is to make sure the jury is stupid. The dumbing-down process has taken effect gradually over the past hundred years, mostly by making certain the jurors don't know how much authority they have, by keeping jurors off the panel who might tend to vote their conscience instead of the law of the land, and by just simply withholding information.

For example, in criminal trials, it's now routine to withhold from the jury any information about mandatory sentencing. While deliberating a man's fate, you're not allowed to know whether "guilty" is more likely to result in five years of prison or 50 -- because if you knew just how hard the hammer was about to fall, you might decide it's not fair and vote for acquittal.

News alert: it's the jury's job to decide what's fair and what's not fair. It's not the judge's, and, contrary to popular wisdom, it's not the legislature's. The legislature is the modern stand-in for King John, and it has no more authority over the jury than he did.

Unfortunately, we've reached a stage in our history when the people are forced to take back the rights granted by those ancient kings, notably in the form of Amendment A in South Dakota. The so-called "jury nullification" proposal in that state would require judges to tell juries that they're allowed to interpret the law -- not just the facts -- so that they can follow their own consciences if they disagree with some concoction of the legislature that shouldn't be applied to the living, breathing human being set before them.

Oddly enough, this idea strikes fear into the heart of the judiciary everywhere. And yet it's one of the oldest ideas in the land -- almost all the Founding Fathers agreed with it -- and, if you think about it, it's self-evident. If the judge could direct a verdict, by framing a question so narrowly that you could only vote one way, then it wouldn't be a real jury in the first place, would it?

And yet listen to what the state of California allows its judges to say while instructing the jury:

"It becomes my duty as judge to instruct you concerning the law applicable to this case, and it is your duty as jurors to follow the law as I state it to you. . . . You are to be governed solely by the evidence introduced in this trial and the law as stated to you by me."

Note the arrogance. You must not only follow the law. You must follow it "as I state it to you." The idea of a reasonable man rising up to say, "But I've read the law and I don't think that's what it means," is beyond the pale of the judge's understanding of his duty. Far less would the judge tolerate "I know that's the law but the law stinks." The jurist doesn't condone this sort of mob thinking, and he doesn't allow it. He's essentially saying that a law degree, an elective office and/or a black robe convey special knowledge and wisdom that no juror could possibly have. The whole basis of the charge -- which is fairly standard in courtrooms across the country -- is profoundly un-American.

Which is precisely why the "informed jury" movement has been gaining strength for about 15 years now. And even though they don't have any major victories yet -- they've lost in Oklahoma, Arizona and Montana -- it warms the cockles of this jaded old heart to see that there are enough renegade patriots left to continue to insist on it.

First of all, I despise this term "jury nullification." If the jurors choose to disregard the law, they are not nullifying it. They are exercising their right not to apply it in this specific case. This used to happen all the time. All those jurors in Massachusetts who refused to convict violators of the Fugitive Slave Act knew very well that the law wasn't on their side. The difference at that time was that the defense attorney was allowed to argue that they should set aside the law. Today such an argument would result in a contempt charge against the attorney, and probably a mistrial.

Supporters of the informed jury movement usually go back to the John Peter Zenger libel case to bolster their position. Zenger was a New York printer who in 1735 published a series of pamphlets criticizing the colonial governor of New York. He was charged by the crown with "seditious libel," and at the time the definition of libel was the publication of anything criticizing public officials, laws or the government.

The judge in the case, quite rightly, ruled that the only fact matter to be proven was: Did he publish the articles or not? Everyone, including Zenger, agreed that the articles had been published and that they contained criticism, so there was no reason to put on evidence. Nevertheless, Zenger's attorney, Andrew Hamilton, argued that the articles were also true, and urged the jury to acquit on that basis. The jury ignored the law and acquitted Zenger, thereby establishing a principle that was later made law: truth is an absolute defense against libel charges.

But I think there's an even better case. In 1670 William Penn was indicted for preaching Quakerism under the "unlawful assembly" act. Despite the fact that he was obviously guilty according to the judge's interpretation of the law, four of the 12 jurors voted to acquit him. The judge had the jurors thrown in jail and starved for four days in an attempt to change their votes. It didn't work. Reluctantly, he ordered Penn released -- but the crown still wasn't finished with the recalcitrant jurors.

The four who voted for innocence were assessed fines for failing to follow the law and sent to prison until the fines should be paid. Three chose to pay the fine -- just to get things over with. The fourth juror, Edward Bushell, was of heartier stock and refused to pay. Instead he took his case to the Court of Common Pleas, where Chief Justice Vaughan eventually ruled that Bushell was right -- jurors could not be punished for a verdict. If anything established that the jury was the sole arbiter of law AND facts, it was this case.

Now this is the secret that no one wants you to know: If you serve on a jury, and you just flat don't like the law you're asked to enforce, you do NOT have to enforce it. You can vote in direct contradiction of the law and in direct contradiction of the judge's instructions -- without fear of reprisal.

Up until 1895, the jury was routinely informed of this right. Then the big mining companies started losing a lot of cases against unions, and they put pressure on the courts, resulting in a Supreme Court decision stating that judges were not required to inform the jury of its rights. Could anything be more draconian? The defendant is informed of his rights. The plaintiff is informed of his rights. The state prosecutor, being an attorney himself, is well aware of his rights. The jury -- the only people in the room without right to counsel -- must figure out its authority on its own. The judge, who is supposed to act as counsel for the jury, to advise it, is conspiring to deprive it of essential information.

And yet the jury's supreme authority was well known to the very first chief justice of the Supreme Court, John Jay, who explicitly informed a jury that it was free to ignore him and his court. It was well known to John Adams, who said, "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 direction of the court." He even went further and called it "absurdity" for a court to expect a juror to be required to accept the judge's view of the law. The principle was well known to those two political opposites, Jefferson and Hamilton, and yet they both agreed on this point.

Need more legal celebrities? Justice Oliver Wendell Holmes wrote in 1920: "The judge cannot direct a verdict, it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts." In more recent years, the Fourth Circuit Court of Appeals wrote: "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."

Could it get any clearer than that?

We shouldn't even need Amendment A in South Dakota, or any similar measure in any other state. All we need is for judges to assume their traditional roles as advisors to the jury, not dictators riding herd over it.

If a man stands before you with a little more marijuana than he might need for his personal use, and the result is that he's facing a 30-year prison term, you do have the right to say, "I won't be a party to that." If a man is charged with animal cruelty for striking a snarling dog with his cane -- one of the more notorious South Dakota cases -- you have the right to say, "Even though the law says he's guilty, I say he's not." If a man comes before you for the third time on burglary charges, and the only possible result is that he goes to prison for the rest of his life, the jury is empowered to say, "The law is too harsh. We will not condone it."

As D.C. Circuit Judge D. Bazelon once put it: "It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law."

And yet our courts today say: "Don't think long. Don't think hard. Don't think at all. It's not your place."

It IS your place. Some guy got shackled in leg irons by King John so that it WOULD be your place. Don't send us back to the Dark Ages by acting like a wimp.

[Russell Kanning]

I had jury duty a couple years ago in Strafford county.  One case I sat on was judged by Peter Fauver. He informed the jury on jury nullification and explained it throughly.

wow ... that is cool