Do you believe in the right of Jury Nullification?

[Comp-tech]

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Gunslinger wrote:

Both common and case law are well established to mean "judge the application of the law (or apply the law as written and explained by the judge) via the facts of the case." Or, you could say 'see if the facts as presented determine the applicability of the law (violated or not) in the instant case."(2) It doesn't mean "judge" the rightness (or correctness) of the law. The law is as written by the legislation passed to make it a law. In VA, the law banning radar detectors is stupid. But a jury would decide whether or not the defendant did in fact have one (prima facie proof of violation of the law) based on the facts presented.(1) If he did, and you found him not guilty--when he clearly violated the law, that is jn. Extenuating circumstances can come into play: he bought the detector in NC and it was still in the box when stopped in VA for, say, speeding. The cop is a dick and tickets him for having a detector--again, prima facie proof of violation. The jury could then take a reasonable interpretation of extenuating circumstances--no intent, and find ng. That would not be jn.

(1) I agree with your description of what jn is and isn't...but, many juries have returned ng based on their determination of the "rightness" of a particular law.
In the early 1800s, jn was used in cases brought under the Alien and Sedition Act.
In the mid 1800s, northern juries used jn in cases brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws.
In the Prohibition Era of the 1930s, many juries used jn in cases brought against individuals accused of violating alcohol control laws....in fact, jn may very well have helped to end prohibition.
(2) The above are all examples of how juries have indeed used jn to judge the "correctness" or "rightness" of a particular law.
Every Constitution that I'm aware of has some statement of Rights like "all political power is inherent in the people" and "they have at all times an inalienable right to change their form of government in such manner as they may deem expedient" etc.....
If the people have the ultimate Right of revolution to protect their liberties, then they most certainly also have the lesser included and more gentle Right of jn to protect their liberties against laws they find outside of "rightness" or "correctness".

 

[Gunslinger]

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We're saying the same thing. JN is and will always be a factor in justice based jury decisions. But it only gives that defendant the benefit. The bad law remains for the next poor sob to hope a jury will side with substantial justice, and not the easy way out.

 

[Comp-tech]

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Gunslinger wrote:

We're saying the same thing. JN is and will always be a factor in justice based jury decisions. But it only gives that defendant the benefit. The bad law remains for the next poor sob to hope a jury will side with substantial justice, and not the easy way out.

Ageed....just too bad that most, if not all, courts not only do not make juries aware of JN, they even go so far as to prohibit them from being told about it by defense attorneys etc.

 

[marshaul]

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I made the following post in another thread, but it's relevant here so I thought I'd post it.

unreconstructed1 wrote:

If you ask me, it would be a much better system if, instead of waiting for an unconstitutional law to be passed, waiting for someone to complain, waiting for a court date, etc. If SCOTUS's job was simply to review each law before it was presented on the floor, and signing of on the constitutionality of it THEN, which is what I imagine the founders probably had in mind in the first place.

Fie! Certainly not!

Thomas Jefferson wrote:

The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

Thomas Jefferson also wrote:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

The people should rely on their own powers (e.g. jury nullification) to ensure the constitutionality of laws enacted by their representatives. We should not rely on the good graces of men appointed for life to a position with powers they don't rightfully have. In fact, the judiciary is responsible for taking our powers (for example, the above-mentioned jury nullification) as much as is either other branch, while we sit idly by and pray for a mitigating decision, and heap praise upon them on the rare occasions when we receive such a decision.

Thomas Jefferson wrote:

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.

(emphasis mine)

Thomas Jefferson wrote:

The juries [are] our judges of all fact, and of law when they choose it.

Thomas Jefferson wrote:

If the question before [the magistrates] be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.

(emphasis mine)

Wikipedia wrote:

In recent years, judges seem to be less likely to favor jury nullification. While unable to take away the power of nullification, they have done much to prevent its use....

...The first major decision [along these lines] was Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840),[20] which held that the bench could override the verdict of the jury on a point of law. The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

Once again, Jefferson was right. We would do well to read his words, rather than assume we know what they were.

 

[Tomahawk]

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[align=left]http://www.lewrockwell.com/suprynowicz/suprynowicz93.html[/align]
[align=center][font="Times New Roman, Times, serif"][/font][/align]
[align=center][font="Times New Roman, Times, serif"]Sept. 5 Is Jury Rights Day. DoYouKnowYours?[/font]
[/align]
[align=center][font="Times New Roman, Times, serif"]by Vin Suprynowicz[/font][font="Georgia, Times New Roman, Times, serif"]
[/font][/align]
[align=center] [font="Verdana, Arial, Helvetica, sans-serif"]
DIGG THIS[/font][/align]
[font="Times New Roman, Times, serif"]To grasp why the Bill of Rights leads off by barring Congress from “establishing” any religion, “or prohibiting the free exercise thereof,” you must understand that in 18th century England there was no “separation of church and state.” The English monarch to this day includes in her title “Fidele Defensor” – Defender of the Faith. Which helps explains why even our right to a jury trial stems directly from this era. [/font]

[font="Times New Roman, Times, serif"]In 1670, it was declared illegal to hold a religious gathering or preach a sermon in England which was not a “Church of England” sermon. Dissident churches, including the Quaker meeting houses, were closed. [/font]

[font="Times New Roman, Times, serif"]Unable to get into his London meeting house, William Penn led a Quaker meeting in the street outside. He was arrested and put on trial on Sept. 5, 1670, 338 years ago this week. [/font]

[font="Times New Roman, Times, serif"]The judges explained to the jury that preaching a nonconformist sermon was illegal, and Penn had been caught doing just that. They instructed the jury to convict. [/font]

[font="Times New Roman, Times, serif"]The jury asked to be read the wording of the law Penn was said to have violated. The judges told them they didn’t need to read any stinking law, they were to “take the law as we give it to you” – an insufferably aristocratic phrase that’s cropping up a lot in our own courthouses, these days. [/font]

[font="Times New Roman, Times, serif"]The jury said if they couldn’t see the law, they weren’t going to convict. In fact, God bless them, they unanimously acquitted William Penn, who was thus free to emigrate to America, where he subsequently got his picture on a box of oats, and presumably did some other stuff. [/font]

[font="Times New Roman, Times, serif"]The judges were not pleased. They locked the jury in an upstairs room, telling them they’d get no food or water – they couldn’t even come down to use the outhouse – till they convicted. [/font]

[font="Times New Roman, Times, serif"]The jury, led by one Edward Bushel, would not relent. Friends passed them jugs of water on poles. Eventually Bushel and a few others, sticking by their guns, were thrown in prison. [/font]

[font="Times New Roman, Times, serif"]The case went to the highest court in the land. And lo and behold, reaching back to Anglo-Saxon precedent, England’s Court of Common Pleas ruled the jury was right – they were under obligation to follow no one’s orders as to what verdict they could reach. Juries were and remain to this day free to vote their conscience, even in direct contravention of the instructions of the judge; they cannot be punished for doing so. [/font]

[font="Times New Roman, Times, serif"]On these shores, the precedent was upheld in the case of John Peter Zenger, charged in 1735 with libeling the king. British law did not allow “truth” as a defense. If you published a criticism of the king, that was criminal libel. Zenger admitted he’d printed the pamphlet, and everyone could see it was critical of the king. [/font]

[font="Times New Roman, Times, serif"]The court therefore instructed the jury to convict. The American jury told the judge where he could shove it, thus not only confirming American jury rights, but also handing us a little thing we like to call “Freedom of the Press.” [/font]

[font="Times New Roman, Times, serif"]The next time you’re called for jury duty and the judge tells you “We don’t have that here; you must take the law as I give it to you,” you have two choices. You can tell him he’s lying (in which case he’ll send you home), or you can keep your mouth shut, get seated on that jury, and then tell your fellow jurors the guy in black has been lying, once you’re safely ensconced in the jury room. [/font]

[font="Times New Roman, Times, serif"]This Friday, Sept. 5, jury rights activists across the nation will once again celebrate the juror’s right to render a verdict based on his or her conscience, even if in direct contravention to every “instruction” of the court. [/font]

[font="Times New Roman, Times, serif"]If you think the War on Drugs is absurd, counterproductive, or unconstitutional (it’s all three) and you find yourself on a drug jury, you can – some would hold you have a moral duty to – vote to acquit no matter what you believe the defendant did. [/font]

[font="Times New Roman, Times, serif"]If you can’t get all your fellow jurors to go along with you, hang the jury. Refuse to let it convict. They can’t do a thing but snarl at you like chained curs. Make the state re-try the case. Chances are there’ll be even more opponents of the War on Drugs on the defendant’s next jury – providing everyone keeps their mouths shut during “voir dire” and doesn’t help the court to stack a jury full of obedient pro-Drug-War stooges. [/font]

[font="Times New Roman, Times, serif"]For more information, go to www.fija.org. [/font]

[font="Times New Roman, Times, serif"]The D.C. Court of Appeals held in the 1972 Vietnam draft case U.S. vs. Dougherty that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions from the judge. Most often commended are the 18th-century acquittal of John Peter Zenger on charges of seditious libel and the 19th-century acquittals in prosecutions under the fugitive slave laws. [/font]

[font="Times New Roman, Times, serif"]In United States v. Moylan in 1969, the 4th Circuit Court of Appeals ruled “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. … If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” [/font]

[font="Times New Roman, Times, serif"]In Georgia v. Brailsford, 1794, Chief Justice John Jay, speaking for a unanimous Court, instructed the jury: “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that 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. … Both objects are lawfully within your power of decision.” [/font]

[font="Times New Roman, Times, serif"]Does the local black-robed political hack trying to intimidate you out of voting your conscience in the jury room think he is a superior authority on our system of law and jury trial than John Jay, first Chief Justice of the United States Supreme Court?[/font]

[font="Times New Roman, Times, serif"] If he aims to direct your deliberations, ask him to come back into the jury room and guide you. He cannot. He is forbidden to do so. Why do you suppose that is? [/font]

[font="Times New Roman, Times, serif"]“The judge cannot direct a verdict it is true,” said Mr. Justice Holmes, for the majority in Horning v. District of Columbia, 1920, “and the jury has the power to bring in a verdict in the teeth of both law and facts.” [/font]

[font="Times New Roman, Times, serif"]That is the truth, and the truth shall set us free. The rest is lies, and the goal of the black-robed liars is ever to get us to hold out our wrists for the manacles of their tyranny – doing it docilely, and thanking them for the favor.[/font]







[align=right][font="Georgia, Times New Roman, Times, serif"][font="Times New Roman, Times, serif"]September 5, 2008[/font][/font][/align]

[align=left][font="Times New Roman, Times, serif"]Vin Suprynowicz [send him mail] is assistant editorial page editor of the daily Las Vegas Review-Journal and author of The Black Arrow. [/font][/align]

[align=left][font="Times New Roman, Times, serif"]Copyright © 2008 Vin Suprynowicz[/font][/align]

 

[Comp-tech]

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Excellent post Tomahawk...

 

[marshaul]

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Excellent post indeed. I missed it when it was first posted.

 

[mpg9999]

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http://www.cato-at-liberty.org/2008/08/14/juror-becomes-fly-in-the-ointment/

It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client.And then thetwelve citizen-jurors retired to deliberate the outcome of the case.
But then something unusual happened. The jury sent anote to the trial judge with the following query:Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions formanufacturingand smugglingalcohol,a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
That’s a fair question. Itis a point that has been made in Cato’s publications ( go here(pdf) and here(pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Youngwas startled. He says hehas been onthe bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’tgoing tosign off on an unconstitutional prosecution, Younghalted the proceedings toidentify the”problem juror.” Once discovered,that jurorwas replaced with an alternate–over the objections of defense counsel.Shortly thereafter, the new jury returnedwith guilty verdicts on several cocaine-related charges.
It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.So, tojustify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law(pdf). Ihappen to know and respectJudge Young. Iinvited him to speak here at Cato about the awful federal sentencing guidelines, but his legalmemorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.
1. Courtprecedents say jurors have no right to nullify. Well, yes, that is undeniable.But that’s like someone saying in 1950 that courtprecedentstell us that ”separate, but equal” is the law of the land–go readPlessy v.Ferguson. The real question is whether those court rulings are truly consistent with the Constitution.I would also point out that even thoughmany modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury roomwhere the result was deadlock (not an untoward outcome, by the way). Judges do remove jurors from time to time, but there is no punishment. At least not yet.
2. Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution.The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough. Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification. Here’s Adams: “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.” C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).
3. Jury nullification undermines the rule of law. This is simply another variation of objection #2 above. There is a logical fallacy to this objection. Jury nullification is assumed to be improper–so it undermines “the law.” It is like saying a presidential pardon undermines the “rule of law.”But ifthe president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases). This is the way in which to understand jury nullification. The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about. Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases. Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.
Judge Young expressed alarmabout the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases. But that article hasrevived adebate that we should all welcome. For much more on this subject, go here, here, here, and here.

 

[Thundar]

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mpg9999 wrote: Thundar direct comments after ***

The jury sent anote to the trial judge with the following query:Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions formanufacturingand smugglingalcohol,a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
, Younghalted the proceedings toidentify the”problem juror.” Once discovered,that jurorwas replaced with an alternate–over the objections of defense counsel.It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.

1. Courtprecedents say jurors have no right to nullify. ***The constitution does not say that juries have to follow court precedent.***

2. Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” ***The misapplication of history is quite sad to see, but understandable from the men in black robes. The history was that the crown used admiralty courts, which have never had juries due to the complex nature of the laws of the sea and the lack of understanding by the common man, to do an end run around jury nullification by our forefathers. Yup lots of sedition convictions in British Admiralty Court. The Declaration of Independence spoke of this injustice in one of the grievances: For depriving us in many cases, of the benefit of Trial by Jury.

Jury nullification undermines the rule of law. ***The sanctity of the jury IS the rule of law. Jury rigging by judges grossly distorts and undermines the rule of law.***

This reading is very important to those that believe in the 9th and 10th Amendments to the Constitution. Insist on only secret ballots in the jury room. You are entitled to that. Do not let your objections rest on constitutional grounds alone. Any doubt that you may have can be argued as reasonable doubt. You cannot be dismissed for reasonable doubt.

FIJA has lots of suggestions about ensuring that you are able to exercise your jury duty without being kicked off of a jury, or even being excluded from a jury during the jury selection process.

This case is a travesty that really should be exposed for what it is. Jury rigging by a Federal Judge. Shame on him.

 

[FreedomJoyAdventure]

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Judging the law, as well as the facts, is my right and responsibility as a juror.

I know I'm not likely to hear to hear that from a judge.

We have many, many laws that deserve jury nullification.

 

[Alexcabbie]

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ORENTHAL

JAMES

SIMPSON.

Many peole cite the OJ cas as jury nullification run amok. Well, I did not see the entire trial - some of us have to work for a living - but IMHO the reason OJ got off was not "Jury nullification" but rather sloppy police work by LAPD as well as sloppy case prep by the DA. From what I saw being presented to the Jury - who by law have to consider ONLY what was presented in the courtroom, I would have had to vote to aqquit.

Let's go to Wisconsin, where a few years back an 18-year-old kid had a 16-year-old girlfriend with whom he had been having a sexual relationship. But because of a few day's difference in birthdates, he was not a paarticipant in a consensual relationship but rather a "Statutory rapist", and even though he got off with a light jail term he still had to register as a "sex offender" for the rest of his life, and bear the stigma of a felony for life into the bargain. Now since I am 55 years old and not really in the market for a ditzy 16-year-old I haven't followed the case but I think some kerfluffle resulted in either the Governor of the Parole Board fixing thins so the kid jusst has a misdemeanor and doesn't have to register. Or whatever. But had I been on that jury I would have voted to aqquit, again based on my admittedly incomplete understanding of the case but rather what I know of it from casual reading of the newspapers. But it seems to me that punishing a perfectly normal relationship between teenagers as a felony is more than a bit overboard, and this case seems to me to be one that just cried out for jury nullification

Here in Virginia, criminal cases are styled: "COMMONWEALTH OF VIRGINIA vs John Doe. Murder someone, steal a car, jaywalk; and the wrath of the entire Commonwealth is brought to bear upon you. What stands against the abuse of the law? The jury. And so Commonwealth law provides in so many words: "The jury shall be judges of both law and fact" This is as it should be, and Amen

 

[marshaul]

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Alexcabbie wrote:

Let's go to Wisconsin, where a few years back an 18-year-old kid had a 16-year-old girlfriend with whom he had been having a sexual relationship.  But because of a few day's difference in birthdates, he was not a paarticipant in a consensual relationship but rather a "Statutory rapist", and even though he got off with a light jail term he still had to register as a "sex offender" for the rest of his life, and bear the stigma of a felony for life into the bargain. Now since I am 55 years old and not really in the market for a ditzy 16-year-old I haven't followed the case but I think some kerfluffle resulted in either the Governor of the Parole Board fixing thins so the kid jusst has a misdemeanor and doesn't have to register. Or whatever.  But had I been on that jury I would have voted to aqquit, again based on my admittedly incomplete understanding of the case but rather what I know of it from casual reading of the newspapers.  But it seems to me that punishing a perfectly normal relationship between teenagers as a felony is more than a bit overboard, and this case seems to me to be one that just cried out for jury nullification

http://freestudents.blogspot.com/2008/10/to-save-them-we-must-destroy-them.html

We obviously cannot rely on the courts to protect us from such abuses. Jury nullification was the tool intended to mitigate such obvious legislative and judicial ignorance of right and wrong.

 

[Alexcabbie]

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Marshaul- boy, I wish I had not gotten that sidewall puncture in my tire, I could be raking in dough right now. Here I am on the Internet, reading that blog you referenced. my response::what::uhoh::banghead::banghead::banghead:

I would ask how stupid we can get, but even Stephen Hawking cannot define the limit of infinity, or so it would seem.....

 

[Tomahawk]

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mpg9999 wrote:

When the jury sent out more notes about a juror that wasn’tgoing tosign off on an unconstitutional prosecution, Younghalted the proceedings toidentify the”problem juror.” Once discovered,that jurorwas replaced with an alternate–over the objections of defense counsel.Shortly thereafter, the new jury returnedwith guilty verdicts on several cocaine-related charges.

I wish I didn't read this. It made me so angry I almost threw my laptop across the room! Why is this POS judge not in a jail cell? Why is he not wearing a fresh coat of tar and feathers and riding a rail around the town square? Who are the cowards in the jury room who were sending notes out to this POS judge? Where is the higher court system to discipline this fool?

And why must we feel so impotent, able to do nothing but sit in front of a computer and read this awful story and complain about it?

I often try to moderate my words when speaking about government abuses because being calm and deliberative is the reasonable thing to do, and because I don't want to become a raving nut job.

But it's really hard sometimes to stop myself from hoisting the proverbial Jolly Roger...

 

[Paladin_Havegun_Willtravel]

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I was talking about this with two men from my Church who came by last Sunday Afternoon.



My answer is YES!



But I believe even more in "Reverse Jury Nullification" where by you give someone who is truly guilty of a heinous crime, but by some technicality, may only qualify for a lesser one andmy evade punishment, even a stronger sentience than the law would allow.

I, for one, would execute all child molesters, traitors, anda bunch of other folks.