Jury Nullification: The Right of Free Americans
by sherry clark
I am only one, but I am one. I cannot do everything, but I can do something. What I can do, I should do and, with the help of God, I will do!
The last refuge of freedom — our great experiment– has turned its back on the very thing that made this country great–our Constitution. Where the “rule of law” was once king, we see everywhere its desecration. What then can the people actually do about it? One word: Nullify.
“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, 1789 letter to Thomas Paine
Jury nullification is an act by a jury through its verdict to make an official rule, especially a statute, void in the context of a particular case. In other words, it is the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her. This is done when the individuals serving on a jury, either by reason of their conscious or moral grounding believe that a law is immoral or that a sentence is unjust. As the 12th Chief Justice of the U.S. Supreme Court Harlan F. Stone put it, “The law itself is on trial quite as much as the cause which is to be decided.” Jury nullification is thus a means for the people to express opposition to an unconstitutional, immoral or unjust legislative enactment.
Since the time of the Star Chamber jury nullification has played a critical role in the legal system of Western civilization. In Richard Crompton’s treatise on the jurisdiction of courts (L’authoritie et jurisdiction des courts de l majestie de la roygne. London, 1594.) we read:
“Note that the London jury which acquitted Sir Nicholas Throckmorton, Knight, about the first year of Queen Mary, of high treason, was called into the Star Chamber in October, 1544 (sic), forasmuch as the matter was held to have been sufficiently proved against him; and eight of them were there fined in great sums, at least five hundred pounds each, and remanded back to prison to dwell there until further order were taken for their punishment. The other four were released, because they submitted and confessed that they had offended in not considering the truth of the matter.”
Throckmorton’s prominent share in Wyatt’s rebellion put his guilt beyond the slightest question, but he was a protestant hero to the Londoners, and the jury’s verdict was purely political. From then onwards, the jury entered a new phase of its history, and for the next three centuries it exercised its power of veto. See Plucknett, A Concise History of The Common Law 133-34 (5th ed. 1956).
This power of the citizenry played an important role in shaping American history. In 1735, John Peter Zenger was arrested and charged for printing critical but true news stories about the Governor of New York Colony. “Truth is no defense,” the court told the jury! Zenger’s attorney, Andrew Hamilton, however, argued that the law itself was unjust and therefore illegal. Hearing this, the jury agreed and acquitted. As Zenger described in his account of the trial, A Brief Narrative of the Case and Trial of John Peter Zenger(1736):
“No nation, ancient or modern, ever lost the liberty of speaking freely, writing, or publishing their sentiments, but forthwith lost their liberty in general and became slaves.”
Following the trial, the people of New York City awarded Hamilton the ‘freedom of the city’ and gave him a gold box inscribed with “For let the laws be never so much overborne by some one individual’s power, let the spirit of freedom be never so intimidated, still sooner or later they assert themselves.” Inside it reads, “Acquired not by money but by virtue. Thus let each receive what he has deserved of the republic.” As a result, we have the freedom of the press.
Even William Penn, the founder of Pennsylvania found himself on trial for preaching Quaker religious doctrine. There, the courageous London jury refused to find him guilty, even thought they were held without food, water, or toilet facilities for four days. The jurors were fined and imprisoned for refusing to convict William Penn until England’s highest court acknowledged their right to reject both law and fact and to find a verdict according to conscience. It was this exercise of jury nullification which eventually led to the recognition of free speech, freedom of religion, and of peaceable assembly as individual rights.
The role of the jury as a last bastion of freedom held such an important role in our country that our Founding Fathers sought to forever protect it from future governmental attacks by including it in three different places within our Constitution and Bill of Rights. As Bancroft’s History of the Constitution notes: “If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty.” (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution)
This goes well beyond simply having the ability to oppose unconstitutional, immoral, or unjust laws; it is a necessary function of the people in order to maintain their liberty and freedom. As John Adams, our second president said:
“It is not only his 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.”
In the past this right and duty were commonly known to the citizens of America. Attorneys were allowed to inform them of this right, and the people were allowed to exercise it as they saw fit. The 1839 case of Stettinius v. U.S., held that “The defense can argue law to the jury before the court gives instructions.” Nullification was viewed as the jury’s “raw power to set an accused free for any reason or for no reason,” even for reasons having nothing to do with actual guilt. Sepulveda, 15 F.3d at 1190.
Today, this is no longer the case. Now, defense lawyers are forbidden from informing the jury about nullification and cannot argue the law’s merit. Courts will go to extreme lengths to prevent this; going so far as to dismiss any prospective juror who says they know about nullification or who will openly disagree with the law before they are empaneled, declaring mistrials or overturning verdicts if an attorney argues nullification or the validity of a law to the jury, preventing instructions to be given by the judge to the jury about nullification, or even holding an attorney in contempt of court and throwing them in jail should they dare mention it. Despite this, the only power the judge has over the jury is their ignorance!
So far no court has yet dared to deny that juries can “nullify” or “veto” a law, or can bring in a “general verdict”. In fact, the opposite is true. As the Circuit Court for the District of Columbia noted in 1972:
“The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. There were different soundings in colonial days and the early days of our Republic. We are aware of the number and variety of expressions at that time from respected sources-John Adams; Alexander Hamilton; prominent judges-that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.”
U.S. v. Dougherty, 473 F.2d 1113.
This does seem to create a paradox. On the one hand, the courts recognize the right of the jury to rule however they feel is correct, and their ability to judge both law and facts; yet, on the other they will do everything in their power to prevent the jury from knowing about that right.
The court attempts to reconcile this [il]logical situation by distinguishing between the proper role of the judge and that of the jury.
“The right of a jury, as a buffer between the accused and the state, to reach a verdict despite what may seem clear law must be kept distinct from the court’s duty to uphold the law and to apply it impartially.”
United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988).
This has been recognized by the Supreme Court, where Justice Holmes stated:
“[T]he jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts….”
Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920)
This artificial distinction between court officials and the jury means that the court, and everybody else in the courtroom, will not tell you anything about this right, but that doesn’t mean that you don’t still have it. It is simply up to you to exercise it, and if you choose to do so because you believe a particular case warrants it, that decision is unreviewable and irreversible.
Ultimately, jury nullification is an extremely important tool for the preservation of our Constitution, freedom and liberty. Therefore, use it! When you hear that a friend or family member has been called upon for jury duty, do your country a favor and pass this information along to them. Have them research jury nullification for themselves.
Today there are thousands of harmless citizens in prison only because their trial juries were not fully informed. The next person to join them may be you or someone one you love. If you believe that a particular law is unconstitutional, immoral, or unjust…you have the option and power to acquit despite the law or facts in question!
As an American, you are the judge.
“Jury lawlessness* is the greatest corrective of law in its actual administration. The will of the states at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local JURY that formerly confronted kings and ministers. … The pages of history shine on instances of the jury’s prerogative to disregard instructions of the judge.”
vs. Dougherty, 473 F 2nd 1113, 1130, 1139
*Jury lawlessness is another phrase for jury nullification. How ironic that widespread education about the right of “jury lawlesness” may be the only practical remedy for rampant government lawlessness.