Jury Nullification Still Legal

I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.
Thomas Jefferson
In celebration of a recent decision that it's still legal to discuss jury nullification, I'll take this window of opportunity to dedicate a blog post to the topic. On Thursday, U.S. District Judge Kimba Wood determined that it's perfectly legitimate to encourage jurors to vote their conscience, even when that conflicts with the letter of the law. More specifically, she found that distributing pamphlets about jury nullification is not jury tampering, even in front of a courthouse.

Jurors have the authority to judge the law and may vote to acquit a defendant who is guilty of doing something that should not be a crime.

This finding was contrary to the wishes of the U.S. District Attorney's office, which argued that a crime was committed merely "by standing on the plaza near the federal courthouse in Manhattan and handing out literature about the venerable legal tradition that jurors have the authority to judge the law as well as the facts of a case and therefore may vote to acquit a defendant who is guilty of doing something (handing out pamphlets, say) that should not be a crime."

That "venerable legal tradition" is one that the movers and shakers of the justice system would just as soon the great unwashed masses (that would be us) didn't know about; thus the arrest of a retired chemistry professor for standing peacefully on a street corner and handing out brochures, which occurred just over a year ago, and which led to the decision on Thursday.

Julian Heicklen, a 78-year-old former chemistry professor, was dragged from his home in New Jersey early in the morning of February 18 by four federal officers. His crime: distributing pamphlets about jury nullification in front of a courthouse.

So what is this information, so threatening to the very foundations of our society that an old man should be locked up for even mentioning it? The nuclear launch codes? A list of our spies in the Kremlin? Top-secret plans for the next generation of stealth fighter or death ray? The recipe for Kentucky Fried Chicken?

Nope, it's information even Wikipedia has. Not to mention that there's a whole organization, the Fully Informed Jury Association, dedicated to it and it finds support across the political spectrum, from FOX News to the ACLU.

Simply put, jury nullification means that the members of a jury have a right to judge the law of a case, as well as the facts. The history of jury nullification extends from the Magna Carta of 1215 and includes such lustrous names as John Lilburne, the Archbishop of Canterbury and John Peter Zenger . The first Chief Justice of the United States, John Jay, confirmed the right as constitutional in State of Georgia v. Brailsford, in 1794.

...on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.

Jurors have the authority to judge the law and may vote to acquit a defendant who is guilty of doing something that should not be a crime.

Since that time, jury nullification has been instrumental in several key points of American history, including the Alien and Sedition Acts, the Fugitive Slave Laws, and the Prohibition era. As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an "unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge..."¹

But today, defense attorneys are not allowed to introduce the concept of jury nullification to the courtroom, judge's instructions to the jury routinely include the admonition that the jurors are to judge the facts but not the law of the case, and attempts to inform people of this right can lead to being dragged from your home early on a winter morning, as we saw in the case of Julian Heicklen.

Why?

Why should judges and lawyers not want jurors to know that they have the authority to judge the law and may vote to acquit a defendant who is guilty of doing something that should not be a crime?

Let me rephrase the question, and it will answer itself.

Why would those most intimately involved in the administration of our justice system prefer that members of the jury not be aware of their legal role as the ultimate arbiter of the scope of authority and permissible actions of the government?

Do I really need to answer that question for you?

What happens to the ability of government to overreach its authority if only eight percent, one in twelve of every jury, an irate, tireless minority, was aware of their awesome power to control their government?

Jurors have the authority to judge the law and may vote to acquit a defendant who is guilty of doing something that should not be a crime.

During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of the time due to disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.

The more people who understand this simple message, the greater the possibility that we can take back control of our government through the court system. The rest is up to you, faithful readers. The Fully Informed Jury Association has an excellent website, loaded with useful information. Their Juror's Handbook is must reading for anyone interested in the topic or facing jury duty.

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.
John Adams
In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of government; for there are no oppressions which the government may not authorize by law.
Lysander Spooner
Trial by jury is trial by the people. When juries are not allowed to judge law, it becomes trial by the government. Jurors have the authority to judge the law and may vote to acquit a defendant who is guilty of doing something that should not be a crime.

If you are called to jury duty, asked by those who control the system to convict a fellow citizen of violating a statute that you find morally repugnant, remember that contrary to what you may be told, centuries of precedence confirm the supremacy of the jurors over the fate of their fellow citizen. You have not only the right but the duty to protect your fellow citizens from regulatory or judicial overreach and prosecutorial misconduct.

Jurors have the authority to judge the law and may vote to acquit a defendant who is guilty of doing something that should not be a crime.

...and that's all I have to say about that.

---

¹ US vs Dougherty, 473 F 2d 1113, 1139 (1972)