Saturday, August 01, 2009

The Power of Juries

When it comes to legal remedies against bad laws and abuse of government power, one widely overlooked nonviolent weapon we have in our legal arsenal is the jury system. For a law to have effect, it must be enforced. For the law to be enforced (at least for the time being), people must be convicted. And in our system, that means a jury has to make the decision. Thus juries - citizen panels who are presumed to have common sense - are a sort-of safety valve in the process, who are charged with both protecting society from evil, and protecting the innocent from prosecution.

But judges often bully juries and tell them that they are not allowed to consider this or that, or that they may not ponder whether the law is good or bad, or whether or not the punishment would be just. This is all nonsense. A juror can vote however he wants for any reason. The whole point of a jury is to have ordinary citizens make decisions based on common sense. They are not mere rubber stamps of the judge or the state - for that defeats the purpose of the jury system!

In fact, in Anglo-Saxon jurisprudence, there is a long and honorable tradition of Jury Nullification.

When bad laws are routinely nullified by juries, eventually the legislators get the picture and either repeal the bad laws, or rewrite them to make them more just. Jury nullification is a check and balance against bad law - which exists in democracies and republics just as surely as it is found in monarchies and dictatorships.

Three hundred years ago, one such case involved William Penn and the freedom to practice his religion (Quakerism) in England. He was obviously guilty. The law was clear. The jury was instructed to find Penn and his co-defendant guilty. Several jurors refused to convict (because they felt the law was unjust and violated freedom of religion - which should have trumped the law), thus hanging the jury. The jurors who refused to convict were in turn treated like criminals, and pressured to change their minds. In those days, jurors could be arrested and tortured for not voting the way the state wanted them to vote - which defeats the very purpose of the jury system.

Here is a snippet from the above-mentioned Wikipedia article:
By the late 17th century, the court's ability to punish juries was removed in Bushell's Case involving a juror on the case against William Penn. Penn and William Mead had been arrested in 1670 for illegally preaching a Quaker sermon and disturbing the peace, but four jurors, led by Edward Bushell refused to find them guilty. Instead of dismissing the jury, the judge sent them back for further deliberations. Despite the judge demanding a guilty verdict, the jury this time unanimously found Penn guilty of preaching but acquitted him on the charge of disturbing the peace and acquitted Mead of all charges. The jury was then subsequently kept for three days without "meat, drink, fire and tobacco" to force them to bring in a guilty verdict and when they failed to do so the judge ended the trial. As punishment the judge ordered the jurors imprisoned until they paid a fine to the court. Four jurors refused to pay the fine and after several months, Edward Bushell sought a writ of habeas corpus. Chief Justice Vaughan, sitting on the Court of Common Pleas, discharged the writ, released them, called the power to punish a jury "absurd" and forbade judges from punishing jurors for returning a verdict the judge disagreed with.
Jury nullification has been used in the United States to work towards the abolition of slavery and to end racially biased laws, to beat back governmental abuse in laws against criticizing the president (the Alien and Sedition Acts) that were passed under the John Adams administration, and was instrumental in eventually repealing the amendment that turned beer and wine into illegal drugs (prohibition).

In this day and age where government seems to be getting more and more powerful, increasingly arbitrary, and where civil courts (where the burden of proof is lower) are increasingly replacing criminal courts to assess fines - which sometimes are preposterous - jury nullification is a way to restore sanity to a system gone mad. Think of how many times you read in the paper about someone being denied justice, people receiving ridiculous sentences, even situations where people are convicted and given long sentences for protecting themselves from attack - and think of how you could have sent a message by being on the jury and saying "no." Often jurors are all but ordered to vote for conviction. They simply don't know what their rights and responsibilities are. Judges routinely ignore or even misinform jurors about their common-sense safety-valve role in the system.

How often we hear jurors saying that they did not want to convict, but felt they had to vote one way or the other! These people actually believe they are the state's rubber stamp instead of an independent citizen review board to ensure the system is fair and equitable. That's what a jury truly is.

And with the coming juggernaut of nationalized health care - which includes provisions of enforcement of jail and fines against nonconformists and refuseniks - liberty-loving Americans would do well to be informed of their rights as jurors and to be fully informed about the power they have as jurors to impact bad law - or at very least, shield individuals from being victimized by a government that has gone off the rails.

In fact, there is an organization called the Fully Informed Jury Association (FIJA) that seeks to educate the American people regarding their rights and responsibilities as citizen-jurors.

The whole point of a jury system is to inject common sense into a system dominated by arcane legal argument, political taint, and the corrupting influence of money. Unfortunately, lawyers, politicians, and moneyed interests - empowered by judges - have all but turned juries into rubber stamps.

You are not a rubber stamp!


Matthias Flacius said...

Interesting discussion on juries. The idea goes back to the nobility's rights medieval England. The Magna Carta in 1215 guaranteed that nobles could only be tried by their peers. It also limited the arbitrary rule of the king. The jury system also underscores the importance of studying history, legal precedent, and government. An educated man or woman can filter judicial instructions through their own educated mind.

WM Cwirla said...

In spite of five supreme court rulings affirming this, it remains the one thing a judge does not want you to know. It also is the quickest way to be kicked off a jury, but then that would defeat the purpose, wouldn't it?

Past Elder said...

Jury nullification is an important thing, but it is meant as a last resort safeguard.

Legislation from the jury panel is no more a way to run things than legislation from the bench.

I've served on several juries. Pretty amazing what goes on in there, deliberating. I mean that in a good way.

Father Hollywood said...

Dear PE:

Jury nullification is not "legislation from the jury panel."

There is a big and important difference.

When judges "legislate" i.e. "strike down" laws, they are acting outside the Constitution. They have no authority to do so. They decisions (even the Supreme Court's) are only applicable to individual cases. But these decisions are treated as law. In fact, Congress has the power to remove the Supreme Court's jurisdiction over an issue if it so chooses - but they have allowed a kind of judicial tyranny to rein. It provides convenient cover for both parties, and makes the Imperial Presidency a bigger plum for the parties - as he gets to name these dictators to office.

However, jury nullification is nothing of the sort.

Jury nullification truly only affects the case in hand. It prevents a bad law from being enforced in a given case.

Now, if a trend develops, and juries across the state or federation, acting under a kind of consensus, refuse to convict - this sends a message to the Congress or Legislature that the law must be re-written.

In this sense, it is more like a "letter to your congressman" - only it is something that they will listen to - for trials are expensive, and if juries are nullifying left and right, there will be pressure from prosecutors and judges not to proceed, and maybe even the police will not prosecute certain cases or enforce certain laws - and this pressure will bleed over to the legislature.

I agree that this is not a way to "run things" in the normal sense, but we are not living in "normal" times. And, for the most part, people are ignorant of this option.

In the juries you served on, were you fully informed of your right to nullify? Or did the judges in your cases attempt to hogtie and hoodwink you?

Think about the big bail-out bill - the first one, the Wall Street one, the one under Bush. The Capitol Hill switchboard was shut down with phone calls - which were running 98% against. The people were adamant. I called, wrote, and e-mailed my legislators, probably like most of you. Initially, the tactic worked, but Congress rushed in a new bill and passed it - over the vast opposition of the American people. For the most part, "writing your congressman" is a big waste of time, and if you're using snail mail - of paper, ink, and a stamp as well.

You might as well just talk to your TV set. Especially when it comes to Washington, where representatives now "represent" millions of people (I think the original number in the Constitution was something like 20,000 per congressman).

The Federal government has become tyrannical. They don't care about letters. They do whatever they want, and our voice has become utterly deluded. And now, they are poised to take over our entire health care system in addition to banks and car companies.

Now, if all of these angry talk-show Republicans were to, say, commit to nullify any criminal penalty over any issue involving "Obamacare" - it would have an effect on legislation.

It only takes one juror to throw a wrench in the works (at least in criminal cases).

And this is not the exercise of some revolutionary right - it is the system the founders *wrote into* the law of the land - just as it was in British Common Law.

The jury is there for a reason - and it is not to be a rubber stamp of the judge, prosecution, or a deaf, dumb, and blind legislature.

Otherwise, you would not need a jury system. Judges could simply make all our decisions. But our founders understood the value in having real, ordinary people sit in judgment - not only of defendants, but of the laws themselves.

Juries may even, say in a case of 1st degree murder, issue an acquittal, but also find the defendant guilty of a lesser charge, such as 2nd degree murder or manslaughter. But do you think prosecutors want juries to know this?

I believe it is time to dust it off and stop (or at least slow down) the freight train to Siberia.

WM Cwirla said...

"I've served on several juries. Pretty amazing what goes on in there, deliberating. I mean that in a good way."

Ditto. My experience on jury duty, including as foreman, was quite positive. None of the juries were rubber stamps for either side or the judicial bench.

Jury nullification does have a dark side, especially in the South.