Jury Nullification: The foundation of American Democracy, or the ultimate in citizen irresponsibility? You decide. (Never mind, the authorities have decided for you)

Jury nullification is either the solution to our criminal justice system, or threatens to destroy what tatters of that system remain functioning. Interested citizens of all types embrace it, the courts loathe it. Judges routinely mislead juries regarding it. It is integrally relevant to the daily functioning of our society, yet it gets virtually no press, and even less reasoned analysis.

Jury Nullification is essentially this: When the jury retires at the completion of a trial to conduct their deliberations, their decision is entirely their own. How they arrive at their ultimate decision is for the jury to know. They might even disregard the law as written and as explained to them by the judge, acquitting a defendant who might have even admitted the offense.

That, in fact, is how the concept of jury nullification got into our legal system. William Penn, a Quaker, was arrested and tried in 1670 in England for preaching subversive and unlawful religious doctrine. Penn was clearly guilty of violating the Conventicle Act, outlawing all churches except the government operated Church of England. Judge and Lord Mayor of London, Samuel Starling instructed the jury thus:" You are not to determine what the law is. The law is clear. You must decide only if the defendants violated the law as I have given it to you, and finding that they have,for they have admitted that fact, you must find them guilty whether you like it or not. You cannot determine what the law is."

The jury didn't return a verdict of guilty. They knew what the law was, and they refused to abet it. Judge Starling had the jurors thrown into prison, where their civil rights were violated (they used to call it torture). After nine weeks they were finally freed by England's highest court, which ruled that jurors could never be punished for their verdict. William Penn went on to found Pennsylvania and Jury Nullification went into American law.

The first known such incident in North America occurred in 1735. John Zenger, publisher of the New York Weekly Journal was tried for publishing various unfavorable articles about Governor William Cosby. English libel law was such that, even the truth about someone with clout was legally libelous speech. The jury decided that the law was unjust and acquitted the defendant. This scenario reoccurred several times, and the British government began transporting such prisoners to England, trying them before proper English juries. The outrage this generated in the American colonies played no small part in sparking the call for independence from England. These court incidents are also responsible for a large part of the Bill of Rights.

Notwithstanding the foregoing, judges still routinely instruct juries that they have full power to decide all the facts, up to and including whether or not the sky was blue on a particular day. They must not, however, by so much as a comma, deviate from the law as given to them and meticulously explained by the judge, even if the jury disagrees with the law. Judges still say it, but it is no more true now than it was in 1670. Though, as in 1670, judges still occasionally punish jurors for their recalcitrance in finding the proper verdict.

The courts explanation for their mistrust of juries grasp of the law is as simple as it is classic. They merely point to the danger of an African American jury, or juror, of acquitting a criminal defendant based merely on race. They might even, if they have liberal leanings, invoke the specter of racist, southern juries, acquitting Klan members of heinous crimes. Its true that both of those things have certainly happened. There have also been cases of jurors who voted to convict based on the judge's admonishments, who later said they would have acquitted had they been told the truth by the judge. Judges say that juries cannot decide the law, but there is no law that prevents juries from doing just that.

Half of the debate says this is the intention of both the sixth and seventh amendments. The other half says it is a glitch in our legal system. The courts recognize the jurors' right to decide however they choose based on their conscience (those punished for so doing are invariably exonerated by appellate courts). The courts do not generally allow any encouragement for jurors to take the law into their own hands, so to speak. The legal professions are jealous of their franchise. The citizenry is qualified to make the laws, they just arent qualified to interpret them. Go figure.

There are campaigns in several states to incorporate the concept of Nullification into explicit law. The main organization pushing education and activism on this issue is the Fully Informed Jury Association. Members of the association have even gone so far as handing out literature on Jury Nullification at courthouse doors in the hours when prospective jurors arrive. Some of these activists have been threatened with jury tampering. Usually, no charges are filed in such cases. Mainly because prosecutors cant figure out how to try them without showing the "juror's rights" literature to the jury. (Theres that damn glitch in the law again.)

What about runaway juries? Are they merely tools of the Johnnie Cochranes of the world? It might seem so on first glance, except for one thing. Modern juries are carefully selected by the very lawyers trying the case. With the expert advice of jury consultants, lawyers carefully and expensively pick the juries they want to convince. Each side is allowed to dismiss jurors for various reasons. They may even dismiss a juror for being the wrong color or making too much, or too little money, even for appearing a little too interested. This is the jury that acquitted O.J.. A jury carefully chosen in a chess game between the Prosecution and Defense. Its pointless to blame the jury for the failings of a case. The whole exercise is controlled by legal professionals. The jury is told at the outset that the outcome is their decision. Then the legal professionals go to work at stealing their power throughout the proceedings.

A jury encouraged to take an active part in the proceedings however, might be a different animal entirely. Its a common perception that the best potential jurors are routinely successful in avoiding jury duty. This may be because they are savvy enough to recognize it as a fixed game. Wh*y shouldnt juries be allowed to call" Bullshit!" if they feel it is warranted? What if juries were empowered to take an active role in the court proceedings? What kind of juries would we have then? Would our criminal justice system be any more erratic than it is now? Jury Nullification is a glitch in our legal system. Just like the Constitution is a glitch in gvernment control."

"The jury has the right to judge both the law as well as the fact in controversy." -John Jay, First U.S. Supreme court Justice, 1789.

"The jury has the right to determine both the law and the facts". Samuel Chase, U.S. Supreme Court Justice, signatory of the Declaration of Independence, 1796.

"...juries are not bound by what seems inescapable logic to judges..." U.S. Supreme Court, 1952.

The Fully Informed Jury Association has a web site at nowscape.com/fija/fija_us.htm