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Jury Nullification…

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.”

President John Adams (emphasis added).

   I recall my counsel telling me back in ’89, when I was facing a drug conspiracy charge, that my only actual hope at trial would be “jury nullification.” Of course, the reality is that the courts forbid informing the jury of their power to decide the law for themselves.

Tim DeChristopher (33)...

Tim DeChristopher (33)…

(Interested readers can find a concise article on that conviction HERE.)

Despite the fact that the Founding Fathers unanimously declared that the sovereign power of the State was “We, the People,” corporatist rulers have since made clear who actually runs the nation…and it ain’t the people.

When was the last time you saw the police rally on the side of striking workers or political protesters? The corporatist Supreme Court has already ruled that the police have no duty to serve or protect the public. Really? Then who DO they serve?

The question of jury nullification was again brought to my mind in a recent 73-minute film, Bidder 70, at Detroit’s Cass City Cinema. (I was pleasant surprised; while usually informative, documentaries are rarely enjoyable.) It won 20 major film festival awards (but of course, none owned or sponsored by major corporations).

Bidder 70 chronicles the journey of eco-activist Tim DeChristopher and his clever intervention into an illicit auction of Utah wilderness land for oil and gas exploitation. Tim’s bids of $1.8 million for 22,500 acres eventually earned him 21 months in prison despite the fact that the auction itself was later declared illicit by the Interior Department.

While I was impressed with Tim in the film—who is an economic graduate of the University of Utah and a co-founder of the group Peaceful Uprising—I was especially impressed when I saw him more recently on a Bill Moyer’s video interview. For 34 minutes he held forth on a variety of issues and actions with a rather extraordinary performance.

Alice Stokes Paul (1901)

Alice Stokes Paul (1901)

I was impressed with Tim’s commitment to his cause, which included imprisonment without compromise. One of his heroes cited was Alice Paul, the famed suffragist.

Virtually all graduates of accredited universities in the US are required to complete PolySci 101 (American Gov’t). Sometimes I wonder if many were awake in class…

When William Penn, the founder of Pennsylvania, was 26 and arrested in London, England (1670) he was acquitted in a jury trial.

The court had instructed the jury that the illegal act (participating in a Quaker meeting) had occurred, thus “the charge has been proved as a matter law” and so instructed the jury to find him guilty. They ruled otherwise.

Edward Bushell, the jury foreman, was found in contempt, fined and imprisoned. The Chief Judge of England later released Bushell:

Allowing a court to imprison a juror for contempt on the ground that he had voted for an acquittal against the court’s instructions on the law of the case subverted the functions of the jury.

The jury could discharge its functions . . . only if it was exempt from the judge’s power to fine and jail its members…allowing them ever after to return verdicts based on their grasp of the law as well as of the facts. (Levy, The Palladium of Justice.)

In the American colonies John Peter Zenger, a newspaper publisher, was critical of the Colonial Governor. He was arrested, imprisoned for eight months and finally placed on trial in 1735 for criminal libel and defamation.

The court ruled that he did indeed libel the governor in his press and that the truth of the assertions were not a defense under the law. He so instructed the jury.  Defense counsel Andrew Hamilton, however, urged the jury to reach their own conclusions about this legal issue. They acquitted Zenger and thus freedom of the press was born, which greatly aided the subsequent American Revolution.

In 1794, the first Chief Justice of the United States, John Jay, instructed a jury as follows:

[O]n questions of fact, it is the province of the jury, on questions of law, it is the province of the court. But it must be recognized 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.

As private property and corporatist forces gained and asserted more political power, they began to wage a class war for the control of gov’t and the criminal justice system.

Lysander Spooner (1808-1887)

Lysander Spooner (1808-1887)

Lysander Spooner (1852) understood this reality; gov’t is not synonymous with “the people”:

How is it possible that juries can do anything to protect the liberties of the people against the government if they are not allowed to determine what those liberties are? Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government.

Nevertheless, the Supreme Court ruled in 1895, in Sparf v. US, that juries do not have the right to determine the law! It took quite awhile for the propertied elite to assert control, but bear in mind that power in the general area of civil and criminal justice is a predicate for total power.

In the case of Tim DeChristopher, the court ruled that the subsequent decision by the Interior Department that the auction itself was illicit was not relevant to his own “breaking of the law” and other factors.

Given the publicity on the case, the judge brought all of the jury panel one-by-one into his chambers and either elicited their promise to accept his ruling of the law or they were dismissed.

The great irony is that while the courts continue to rule that the jury has no right of the law, all juries that DO DECIDE on a matter of law in opposition to the judge’s instructions have been found by the same courts (on prosecutorial appeals) to be perfectly WITHIN THEIR RIGHTS! and the jury judgment stands.

The State gets to bake the cake and eat it too. But try to snatch one of those crumbs off their table and see what happens…

Dr. Publico

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22 Responses
  1. hoyt spicer says:

    hi nick; really enjoyed this article since i have been a fervent advocate of jury nullification for years, even though admonished and warned against it by judges and speakers at the Wayne County CAP programs. i did it (and do it) like this: after reminding the jury of the roles of the judge, prosecutor and defense attorney, i tell them that “they and they alone are the ones who will decide this case AND noone can ever come up to them after a not guilty verdict and ask “why did you decide the way you did?” NO ONE. all of this is true, of course, so i always got away with it.
    Power of judges is another thing. I had a jury trial before the honorable michael talbot once. the jury found my client not guilty. Well, judge talbot refused to dismiss the jury and instead chewed them out for half an hour. He started out by saying: “well, i can understand why you decided the way you did, but you don’t know what i know.” He then proceeded to regale the panel with a lot of inadmissible “facts” plus a few that were not true.
    I wanted to file a grievance before the judicial tenure commission against talbot, but after discussing the matter with a couple of older and wiser attorneys – who told me: “spicer, if you want to continue to practice law in this building, don’t do it.” I decided to let it go and instead advised my client to do it. of course nothing ever came of it.
    Litigation to protect property rights is not a new thing. I read a book one time called “the hanged man” I can’t remember the author because i loaned the book out and (surprise) it never came back. However, it talks about marcher lords in england i the 13th century being so litigious over their boundaries abutting other lords.

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  10. buck navich says:

    Thank You for your great post. I’m just learning about jury nullification, In response to Hoyt Spicer, you Sir, are a HERO. Please know you are a hero.

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